PARK CENTER WATER DISTRICT, PETITIONER V. UNITED STATES OF AMERICA,
ET AL.
No. 89-1194
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The Supreme Court Of
Colorado
Brief For The United States In Opposition
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the Colorado Supreme Court (Pet. App. 1-20) is
reported at 781 P.2d 90. The findings of fact, conclusions of law and
decree of the district court (Pet. App. 21-51) are unreported.
JURISDICTION
The judgment of the Colorado Supreme Court was entered on October
23, 1989. The petition for a writ of certiorari was filed on January
19, 1990. The jurisdiction of this Court is invoked under the Act of
June 27, 1988, Pub. L. No. 100-352, Section 3, 102 Stat. 662 (to be
codified at 28 U.S.C. 1257(a)).
QUESTION PRESENTED
Whether the Colorado Supreme Court correctly held that the United
States holds a reserved water right to water from a well located on
federal lands which have been withdrawn and reserved pursuant to the
Oil and Gas Conversion Act of 1934, 30 U.S.C. 229a.
STATEMENT
In this action, the Colorado Supreme Court unanimously affirmed a
determination and decree of the District Court, Water Division No. 2,
State of Colorado (water court), which held that the United States has
a reserved water right to 2.67 cubic feet per second (cfs) from a well
situated on federal lands that have been withdrawn and reserved
pursuant to the Act of June 16, 1934 (Oil and Gas Conversion Act of
1934), 30 U.S.C. 229a.
1. Congress enacted the Oil and Gas Conversion Act of 1934
(Conversion Act), ch. 557, 48 Stat. 977, 30 U.S.C. 229a, as an
amendment to the Mineral Leasing Act, 30 U.S.C. 181 et seq. See Pet.
App. 52-53. Subsection (a) of the Conversion Act provides, in
substance, that where a federal oil and gas lessee strikes water
instead of oil or gas, "the Secretary of the Interior may, when such
water is of such quality and quantity as to be valuable and usable at
a reasonable cost for agricultural, domestic, or other purposes,
purchase the casing in the well." Until 1976, Subsection (a) further
stated that "the land on which such well is situated shall be reserved
as a water hole under section 10 of the Act of December 29, 1916." /1/
Subsection (c) provides that where the well casing is so purchased,
the Secretary "may lease or operate such wells for the purpose of
producing water and of using the same on the public lands or of
disposing of such water for beneficial use on other lands." Finally,
Subsection (d) states that the Secretary "may use the proceeds from
the sale or other disposition of * * * water (under the Act) as a
revolving fund for the continuation of such program, and such proceeds
are hereby appropriated for such purpose.
2. The Park Center Well was drilled prior to the enactment of the
Conversion Act on federal lands in Colorado as an exploratory well for
oil and gas under the Mineral Leasing Act. The well never struck oil
or gas; rather, it intercepted water under artesian pressure. After
passage of the Conversion Act, the 40-acre legal subdivision
containing the well was withdrawn on September 27, 1934, pursuant to
Order of Interpretation No. 209 and the Executive Order of Withdrawal
dated April 17, 1926, also known as Public Water Reserve No. 107. In
June 1935, the artesian flow of water from the well was measured at
2.67 cubic feet per second. In 1936, the United States purchased the
casing of the well under the Conversion Act. Pet. App. 2-5, 22.
Since 1937, all the water from the well has been used by petitioner
or its predecessor, the Canyon Heights Irrigation and Reservoir
Company (Canyon Heights), under a series of leases issued by the
United States. Every lease, including the current lease, has
contained the following provision:
The furnishing of water hereunder shall under no circumstances
become the basis of a permanent water right.
Pet. App. 5.
In 1972, petitioner and Canyon Heights filed an application in the
water court for a water right to the Park Center Well. Pet. App. 5.
On April 24, 1973, the water court entered a decree awarding a water
right to Park Center in the well for 708 gallons per minute (1.58 cfs)
for domestic and irrigation purposes with a priority date of January
8, 1938. Ibid.; Pet. App. 54-57. The United States had not yet been
joined in the Division No. 2 proceedings when the 1973 decree issued.
Pet. App. 6.
3. Pursuant to the McCarran Amendment, 43 U.S.C. 666, the United
States was joined as a party to the general adjudication of water
rights in Water Division No. 2 in May 1979. In December 1979, the
United States filed a general application for claims of federal
reserved water rights and state appropriative rights. The application
sought, among other things, confirmation of water rights to all
Conversion Act wells within Water Division No. 2. Thereafter, the
United States filed an amended application specifically claiming 2.67
cfs from the Park Center Well, with a priority date of May 29, 1936,
for domestic, municipal and irrigation use. Petitioner and the State
of Colorado filed statements of opposition. /2/ The United States
subsequently moved for summary judgment on its claim. Pet. App. 7-10,
25-31.
The water court entered findings of fact, conclusions of law, and a
decree (Pet. App. 21-51) granting the motion for summary judgment and
decreeing to the United States a reserved water right "to 2.67 cfs out
of the Park Center Well * * * with antedated priority of May 29, 1936,
for domestic, municipal and irrigation purposes." /3/ Pet. App. 50.
The water court found that petitioner was collaterally estopped from
challenging the United States' claim because petitioner had asserted
the same purported water right in administrative proceedings before
the Department of the Interior; the issue had been resolved against
petitioner; and petitioner did not seek judicial review of the
determination. Pet. App. 31-35. /4/ The water court likewise found
that petitioner was estopped under the terms of its lease, which
denied that the arrangement could become "the basis of a permanent
water right," from challenging the federal water right claim. Pet.
App. 35-36. After considering the purposes of the Conversion Act, the
court then ruled that the United States is entitled to a reserved
right to 2.67 cfs of water from the well. Pet. App. 36-44, 50. The
court also held that the claim had been timely filed under Colorado
law so that it had priority over petitioner's 1973 decree. Pet. App.
44-47.
4. The Colorado Supreme Court affirmed in a unanimous opinion.
Pet. App. 1-20. The court agreed with the water court "that the
United States, by virtue of the Conversion Act, reserved the right to
the use of water flowing from the converted wells." Pet. App. 16. It
identified the purposes of the Conversion Act as first, providing
water for beneficial use on both reserved and private adjacent land
and, second, raising proceeds from the sale of well water to finance
the program of converting more wells. As to the extent of the right,
the Colorado Supreme Court followed its previous decision in United
States v. City and County of Denver, 656 P.2d 1 (Colo. 1983) (Denver
I), which in turn relied on this Court's decisions in Cappaert v.
United States, 426 U.S. 128 (1976), and United States v. New Mexico,
438 U.S. 696 (1978). The state court therefore noted that its task
was to "determine the precise quantity of water -- the minimal need as
set forth in Cappaert and New Mexico -- required for (the purposes of
the Conversion Act)." Pet. App. 16 (quoting Denver I, 656 P.2d at 20).
Applying this standard, the court found that the claimed amount of
2.67 cfs, which was the entire artesian flow of the well in 1935 prior
to the issuance of the initial lease, "is no more than the amount of
water needed to fulfill the purpose of the reservation." Pet. App. 17.
The court also ruled that the federal government's claim was
entitled, under Colorado law, to priority over petitioner's 1973
decree, which had issued before the United States had been joined in
the litigation. Pet. App. 17-19. In view of its disposition of these
matters, the court found it unnecessary to reach the estoppel issues.
Pet. App. 19 n.22.
ARGUMENT
The unanimous decision of the Colorado Supreme Court is correct and
does not conflict with any decision of this Court or any other court.
Nor does the petition present any important, recurring issue of law
warranting review by this Court. /5/
1. The Property Clause of the United States Constitution, Art. IV,
Section 3, empowers Congress to enact legislation affecting the use
and disposition of unappropriated non-navigable waters on federal
lands. See Cappaert, 426 U.S. at 138; California Oregon Power Co. v.
Beaver Portland Cement Co., 295 U.S. 142, 162 (1935). The Conversion
Act represents a highly unusual form of exercise of that authority.
Unlike most statutes concerning the reservation of federal lands,
which contain no mention of water and which, therefore, require
ascertainment of implied congressional intent whenever matters
concerning water rights arise, the Conversion Act expressly mentions,
indeed exclusively concerns, water.
Subsection (c) of the Conversion Act provides that where the
government has purchased the casings of oil and gas wells on federal
lands, the Secretary "may lease or operate such wells for the purpose
of producing water and of using the same on the public lands or of
disposing of such water for beneficial use on other lands." Emphasis
added. Subsection (d) provides that the Secretary "may use the
proceeds from the sale or other disposition of such water as a
revolving fund for the continuation of such program." Emphasis added.
The legislative history of the Conversion Act confirms that its
purposes are to authorize the Secretary to purchase the casings of oil
and gas wells and "to lease or operate such wells for the production
and disposal of the water where the water is valuable for agricultural
or domestic use." S. Rep. No. 1378, 73d Cong., 2d Sess. 2 (1934)
(quoting incorporated Letter from Secretary Harold Ickes to Senator
Robert Wagner (June 9, 1934)). Because the water flow from the well
is needed to accomplish these purposes, the United States has a
reserved water right to that flow. /6/
Despite the clear statutory language that the Secretary "may lease
or operate" the wells to produce or use water on the public lands or
on other lands (30 U.S.C. 229a(c) (emphasis added)) and "may use the
proceeds from the sale or other disposition of such water" to support
continuation of the program (30 U.S.C. 229a (d) (emphasis added)),
petitioner contends (Pet. 17-23) that the Conversion Act does not, in
fact, authorize the Secretary to lease or otherwise require payment
for the use of water from Conversion Act wells. Petitioner points out
(Pet. 20) that Subsection (c) of the original bill was amended in
committee by striking out certain words in the original version which
referred to selling, leasing, or purchasing water, and adding new
language providing that the water was to be used for beneficial use.
These amendments, however, do not indicate a congressional intent
to change the bill so as to deny the Secretary authority to lease the
water. If that had been the intent, the committee would have also
stricken the words "lease or" where they appear in the phrase which
provides that the Secretary "may lease or operate such wells."
Likewise, the committee would have amended Subsection (d) by
eliminating the reference to "the proceeds from the sale or other
disposition of such water."
The Senate report in fact discloses that all of the amendments that
were incorporated into the final version of the bill were adopted
verbatim as suggested in a letter of the Secretary of the Interior
commenting upon the bill. S. Rep. No. 1378, supra, at 2. The
Secretary's letter, which is reproduced in the Senate report,
described the bill as one authorizing him "to purchase the casing in
wells drilled under oil and gas permits and leases which strike water
instead of oil or gas, and to lease or operate such wells for the
production and disposal of the water where the water is valuable for
agricultural or domestic use." Ibid. There is no hint in the letter
of any intent to change this purpose. Shortly after the bill was
enacted, the Secretary issued regulations providing, among other
things, for the leasing of water from Conversion Act wells. 30 C.F.R.
Pt. 241 (1983); see Pet. App. 16 n.18. If petitioner's theory were
correct, the Secretary, having himself suggested the amendatory
language in order to bar the United States from charging for the use
of water, then issued regulations immediately after passage of the
statute that were directly contrary to the intent of the very
amendments he had just suggested. Such an assumption is wholly
implausible.
2. Petitioner points out (Pet. 15-23) that Subsection (a) of the
Conversion Act provides that the lands on which the wells are situated
shall be reserved as water holes under Section 10 of the SRHA. In
petitioner's view, this makes applicable the Colorado Supreme Court's
ruling in Denver I, 656 P.2d at 31-33, 36, that the extent of federal
reserved water rights for public springs and water holes withdrawn
under Section 10 of the SRHA is limited to the minimal amount
necessary for the purposes of preventing the monopolization of water
needed for domestic and stockwatering purposes.
The flaw in this argument, as the Colorado Supreme Court recognized
(Pet. App. 13-17), is that it entirely fails to recognize that the
right to the use of water flowing from the converted wells rests not
only on Section 10 of the SRHA, but also on the Conversion Act, with
its distinct statutory purposes. Unlike withdrawals made solely under
Section 10 of the SRHA, which contemplated only that enough water
should remain in the water holes to allow such use as may be made by
the public, the Conversion Act expressly authorizes the Secretary to
lease or operate the wells to produce water both for use on public
lands and "for beneficial use on other lands." 30 U.S.C. 229a(c)
(emphasis added). The Conversion Act does not restrict the Secretary
to lease only when, and in such amounts as, such leasing may be
necessary to prevent monopolization.
3. Petitioner complains (Pet. 7-15) that the Colorado Supreme Court
repudiated the approach articulated by this Court in United States v.
New Mexico, supra, that, under the "implied-reservation-of-water"
doctrine, Congress is assumed to have reserved "'only that amount of
water necessary to fulfill the purpose of the reservation, no more'"
when it reserves federal land. Id. at 700 (quoting Cappaert, 426 U.S.
at 141). We note at the outset that application of the
implied-reservation-of-water doctrine is required only when "the
reservation (of water) is implied, rather than express." See New
Mexico, 438 U.S. at 701. This case in fact involves a statute, the
Conversion Act, which makes express provision for the use of water
from federally owned wells.
But in any case, the Colorado Supreme Court explicitly applied the
standard set forth in New Mexico and Cappaert, according to which the
court is to:
determine the precise federal purposes to be served by (the)
legislation; determine whether water is essential for the
purposes of the reservation; and finally determine the precise
quantity of water -- the minimal need as set forth in Cappaert
and New Mexico -- required for such purposes.
Pet. App. 13 (quoting Denver I, 656 P.2d at 20). As we have recounted
above, the court in this case determined the federal purposes to be
served by the Conversion Act (see Pet. App. 16), and determined the
quantity of water minimally needed to fulfill those purposes (see Pet.
App. 16-17). Petitioner simply disagrees with the application of the
New Mexico standard to the facts of this case. /7/
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
RICHARD B. STEWART
Assistant Attorney General
DIRK D. SNEL
ROBERT L. KLARQUIST
Attorneys
MARCH 1990
/1/ The Act of Dec. 29, 1916, ch. 9, Section 2, 39 Stat. 862, is
popularly known as the Stock-Raising Homestead Act (SRHA). Section 10
of the SRHA stated that "lands containing water holes or other bodies
of water needed or used by the public for watering purposes shall not
be designated under this Act but may be reserved * * * and such lands
heretofore or hereafter reserved shall, while so reserved, be kept and
held open to the public use for such purposes under such general rules
and regulations as the Secretary of the Interior may prescribe."
Section 10 was repealed in 1976 (and conforming amendments were made
to Section (a) of the Conversion Act) by Section 704 of the Federal
Land Policy and Management Act of 1976, Pub. L. No. 94-579, 90 Stat.
2792, but all withdrawals in force at that time remained in force
until specifically revoked or changed in accordance with the 1976 Act.
See United States v. City and County of Denver (Denver I), 656 P.2d
1, 31 n.47 (Colo. 1983).
/2/ Although the State of Colorado filed a statement of opposition,
and a supplemental statement of opposition, it made no further filings
in opposition to the federal government's claim. Certain private
parties in addition to petitioner likewise initially filed statements
of opposition, but these oppositions were later withdrawn or dismissed
prior to entry of the water court's decree. Pet. App. 29.
/3/ Although the United States normally would have been entitled to
a priority date of September 27, 1934, the date on which the
subdivision in which the well is located was withdrawn and reserved,
the United States agreed to accept the May 29, 1936 priority date, as
this was the date which had been listed in the government's
application. Pet. App. 11 n.12, 43-44.
/4/ In 1976, petitioner took an administrative appeal to the
Interior Board of Land Appeals (IBLA) from an order of the Bureau of
Land Management (BLM) increasing the rate payable for water provided
from the Park Center Well. Among other things, petitioner contended
that it held a water right pursuant to Colorado law to the water from
the well and, accordingly, the BLM was precluded from imposing any
additional charges on the water. The IBLA rejected this contention,
concluding that "the right to the use of the water is and always has
been vested in the United States." Park Center Water District and The
Canon Heights Irrigation and Reservoir Co., 28 I.B.L.A. 368, 373
(1977). The IBLA also found that petitioner was estopped under the
terms of its lease from claiming a permanent right to the use of water
from the well. Id. at 376.
/5/ As the court below noted (Pet. App. 14-15), the instant
decision is apparently the first reported federal case involving the
Conversion Act.
/6/ The United States has here sought and been awarded a federal
reserved right to 2.67 cfs, which was the entire production of the
well when it was measured in June 1935, shortly before it was leased
to Park Center's predecessor. The United States has acknowledged that
this reserved right does not allow the federal government to increase
the flow of the well beyond 2.67 cfs by some artificial means, such as
pumping, and have that increased flow relate back to the date of
reservation. Pet. App. 17 n.19.
/7/ Moreover, even if petitioner's arguments concerning the extent
of the Conversion Act reserved water right were meritorious, the
United States would nonetheless prevail in this case on alternative
grounds. As the water court correctly ruled (Pet. App. 31-35),
petitioner is collaterally estopped from challenging the United
States' reserved water right claim because that same issue had already
been resolved against petitioner in the 1977 IBLA decision.
Furthermore, as the water court also properly ruled (Pet. App. 35-36),
petitioner is estopped under the terms of its lease from claiming a
permanent water right in the Park Center Well.